Delhi District Court
Madhav Co Operative Urban Thrift And ... vs Mayank Sharma on 23 December, 2024
M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma
IN THE COURT OF MS. SHIVANGI MANGLA,
JUDICIAL MAGISTRATE-FIRST CLASS (NI ACT)-05,
DWARKA COURTS, NEW DELHI
CNR NO.DLSW02-024155-2018
Ct. Cases No.23959/2018
M/s Madhav Co-operative Urban Thrift & Credit Society Ltd
Vs.
Mayank Sharma
23.12.2024
1. Name of the complainant : M/s Madhav Co-operative
Urban Thrift & Credit Society
Ltd
having its Branch Office at :
E-17, East Uttam Nagar, New
Delhi-110059
Head office at:
B-3A, Badarpur Border,
New Delhi -110044
Through GPA holder/President
Satish Kumar Garg
2. Name and address of the : Mayank Sharma
accused S/o Sh. Vijay Sharma
R/o H.No.229, Text Street
No.8, Vishwas Park, Uttam
Nagar, New Delhi-110059
Ct. Case No 23959/2018
Page No. 1 of 15
M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma
Also at:
U-81, Solanki Road, Uttam
Nagar, New Delhi-110059
Also at:
C-2/213, Yamuna Vihar, New
Delhi-110053.
3. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
4. Plea of the accused : Pleaded not guilty and
claimed trial.
5. Final Order : Conviction.
6. Date of Institution : 06.06.2018
7. Date of Reserving the : 09.12.2024
Judgment
8. Date of pronouncement : 23.12.2024
JUDGMENT
1. Vide this judgment, I shall decide the present matter, Ct. Cases No.23959/2018 filed by complainant against the dishonour of cheque bearing no.284421 dated 10.04.2018 for Rs.2,36,330/- drawn on ICICI Bank Ltd., Janak Puri Branch, Delhi-110058, (henceforth, the cheque in question).
Ct. Case No 23959/2018 Page No. 2 of 15M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma
2. Briefly stated, the facts that the complainant is a registered society, registered under the Delhi Co-operative Society Act 1972 and has filed the present complaint through its AR. Further accused has opened his account in complainant society vide Account No.6663 and on 10.03.2017 took a loan of Rs.2 lakhs from complainant society through cheque No.754706 for a sum of Rs.1,69,000/- and Rs.31,000/- in cash vide receipt No.59 on interest at the rate of 16.20% per annum to be repaid as per settled terms. Application for loan, bond, and payment vouchers were executed. Further, accused issued cheque question to the complainant society towards discharge of legal debt/liability towards outstanding dues. On presentation, the cheque in question was returned unpaid with with remarks "Funds Insufficient " vide returning memo dated 19.04.2018.
3. Thereafter, complainant sent a legal notice dated 06.05.2018 to the accused through registered post calling upon him to pay the outstanding amount. It is the case of the complainant that despite service/receipt of the notice, the accused failed to repay the amount within 15 days. Hence, the present complaint.
4. The present complaint was filed within the limitation period.
5. Pre summoning evidence of AR Satish was recorded and Ct. Case No 23959/2018 Page No. 3 of 15 M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma the cognizance was taken u/s 138 NI Act on 06.07.2018 and summons were issued to accused thereupon.
6. Notice was framed against the accused on 11.04.2022 to which he pleaded not guilty and claimed trial. Application u/s 145(2) was filed and reply was given on behalf of complainant and the same was allowed.
7. Later new AR Keshav was substituted and has examined himself as CW1 and filed his evidence by way of affidavit Ex.CW1/A. He has relied upon the documents : -
Certificate of complainant
1. Mark X
company.
2. Ex.CW1/1 (OSR) Power of Attorney.
Application for loan is
3. Ex.CW1/2
Ex.CW1/2.
4. Ex.CW1/3 Bond executed between parties.
5. Ex.CW1/4 (Colly) Payment vouchers.
6. Ex.CW1/5 (Colly) Statement of account.
7. Ex.CW1/6 Original cheque in question.
8. Ex.CW1/7 Return memo.
9. Ex.CW1/8 (Colly) Copy of legal demand notice and Ct. Case No 23959/2018 Page No. 4 of 15 M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma postal receipt.
10. Ex.CW1/9 (Colly) Copy of delivery report.
11. Ex.CW1/10 Certificate u/s 65B of Indian Evidence Act
12. Ex.CW1/1A (OSR) Authority letter of AR Keshav Garg.
13 Ex.CW1/1B (OSR) Minutes of Meeting for authorisation of Keshav.
8. CW1/AR Keshav was examined in chief, cross examined on 14.12.2022 and discharged on 16.01.2023. Closing CE, the matter was listed for SA.
9. The accused was examined and his statement was recorded under section 313, Cr.P.C. on 04.02.2023, after all the incriminating evidence and the documents on record were put to him. Accused had chosen to lead evidence in his defence. Accordingly, the matter was fixed for DE.
10. Allowing the application u/s 315 Cr PC, the DW1/accused was examined in chief and cross examined on 09.06.2023, 04.09.2023 and discharged on 17.02.2024. During cross examination of DW1, Ld. counsel for complainant brought on record application for loan Ex.DW1/CX (OSR) and bond Ex.DW1/CX1 (OSR) along with the bank statement of accused Ex.DW1/CX2. Thereafter, DE was closed and the matter was Ct. Case No 23959/2018 Page No. 5 of 15 M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma listed for final arguments.
11. On the oral request of Ld. Counsel for complainant for getting certified copy of return memo the application u/s 311 Cr PC was allowed on 17.02.2024 and thereafter, CW2/Amit Kumar Bharti, Senior Manager, PNB, Milap Nagar, examined, cross examined u/s 311 Cr PC on 15.10.2024. The witness brought on record the account statement and cheque returning report Ex.CW2/A (Colly).
12. Both the Counsels led their oral and written submissions in length and filed judgments in support of their case. Rebuttal submissions also taken from both the counsels. The submissions made on behalf of both the parties and the judgments relied on by the parties have been considered.
POINTS FOR DETERMINATION, APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
13. To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following: -
i. the accused issued a cheque on account maintained by him with a bank.
ii. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.Ct. Case No 23959/2018 Page No. 6 of 15
M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma iii. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
iv. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
v. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
14. The accused admitted his signatures on the cheque in question at every stage; from notice under section 251 Cr.P.C. to his statement under section 313 Cr.P.C. Thus, presumption under section 118(a) and under section 139 of NI Act arises against the accused. Unless the contrary is proved, it shall be presumed that the cheque in question was drawn for a consideration and that the complainant received the cheques in question in discharge of a debt/ liability from the accused. In order to rebut the presumptions, the burden of proof shifts to the accused to prove on a preponderance of probabilities that there was no liability for the amount of cheque in question.
(Reliance placed on Triyambak S. Hegde vs Sripad decided by 3 judge bench of Hon'ble SC on 23.09.2021 and Basalingappa vs Mudibasappa Ct. Case No 23959/2018 Page No. 7 of 15 M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma (2019) 5 SCC 418; Bir Singh Vs. Mukesh Kumar (2019) 4SCC; K Bhaskaran Vs. Sankaran Vaidhyan Balan (1999) 7 SCC510; Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC16; 8 Kalamani Tex and Ors Vs. B Balasubramanian (2021) SCC online SC 75; J. Vasantha Kumar Vs. Vipyakuman Kumar AIR 2015 SC 2240; Dashrath Bhai Patel V. Hitesh Patel 2023 SC.)
15. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen in favour of the complainant (reliance placed on Rangappa Vs. Sri Mohan (2010) 11 SCC441). It is now to be examined as to whether the accused has brought any material on record dislodging the presumption which meets the standard of preponderance of probabilities.
16. The defence of accused is that he never received the loan of Rs.2,00,000 rather the loan of Rs.1,69,000 was received by him from the complainant society. And towards the said loan, he has repaid certain amount and as such does not have liability to the tune of cheque amount. It is further the defence that he never received any legal notice.
17. As regards the receipt of legal notice, the certain extract from the testimony of DW1 is quoted here:
Ct. Case No 23959/2018 Page No. 8 of 15M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma "the address mentioned in the legal notice is my correct address. I have not received the legal notice. I resided with my wife and parents at the time of legal notice."
Accused admitted the address to be correct and also admit- ted the fact of his residence at the time of service of legal notice. While total contradictory statement was given by the accused in the statement recorded under section 313 CrPC , where he stated to have left both the addresses and to be not present on the given addresses, on the date on which the legal notice was sent. Ac- cordingly it can be observed, that by giving different statements at different times, the accused is trying to hide certain facts.
In consideration of the contradictions laid and in view of the guidelines lay down in the case of C.C. Alavi Haji vs Palapetty Muhammed & Anr 2007 AIR SCW 3578, the accused shall be deemed to be in receipt of legal notice.
17. Another contention of defence raised by the accused is that he never received the loan of Rs.2,00,000 rather received the loan of Rs.1,69,000 from the complaint society.
The accused admitted Loan application form Ex. CW1/2, he ad- mitted the execution of the bond Ex. CW1/3 as well as the pay- ment voucher Ex. CW 1/4 colly. The said documents prove the transaction of loan between the complainant society and the ac- cused to the tune of Rs.2,00,000.
Ct. Case No 23959/2018 Page No. 9 of 15M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma It is the defence of accused that he was only advanced amount of Rs.1,69,000 and the amount of Rs.31,000 was deposited, but the same was not released ever to him. As such, the specific burden to prove the said fact lies on the accused. However, no evidence, direct or indirect, oral or documentary, has been led by the ac- cused to prove the fact that the amount of Rs.31,000 was never released to him. The specific burden in this regard casted on the accused, has become more onerous, in view of the fact that he has admitted the execution and signatures on Ex. CW1/2, Ex. CW1/3, and Ex. CW1/4, which are to the tune of Rs.2,00,000/-. Accused further admitted to have not sent any legal notice or to have taken any action against the complainant society for not re- leasing the said amount of Rs.31,000 despite getting the docu- ments executed for advancement of loan of Rs.2,00,000. (Re- liance placed on Nemi Nathan V. Subramaniam 2018 DHC). No reason has been disclosed by the accused for not doing so. Hence, the said burden has not been discharged by the accused and he has failed to prove the fact that loan of Rs.1,69,000 only was advanced.
18. The accused has further taken the defence that he has repaid Rs.26,000 against the loan borrowed(1,69,000/-).
Initially, accused showed his ignorance regarding the advance- ment of loan to his wife by the complainant society, but later he Ct. Case No 23959/2018 Page No. 10 of 15 M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma admitted the fact that the loan was sanctioned to his wife for Rs.1,20,000. The said loan taken by the wife was prior to the loan advance to the accused. The said fact has also been admitted by DW1.
Accused further showed his unawareness regarding the EMIs paid by his wife to the complainant society. Through the testi- mony of DW1, it can be find out that the accused has made an at- tempt to hide/conceal material facts from the court. And the facts to which he denied his acquaintance on first instance were later admitted.
DW1 admitted the fact of transfer of Rs.13,000 on 11 April 2017 and 14 June 2017 from the account of his wife.
The accused has merely pleaded that the amount of Rs.26,000/-, which was paid in two instalments of Rs.13,000 each were paid from the account of his wife were actually the repayment done on his behalf.
The testimony of accused is of high relevance in this regard. Cer- tain extracts are quoted:
DW1 deposed -" I do not place any receipt on record, which could reflect the amount of Rs.26,000 deposited by me, was re- spect to my loan account."Ct. Case No 23959/2018 Page No. 11 of 15
M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma " I never raised any objection regarding why the amount which was paid by me was adjusted into the account of my wife. Vol. I was under impression since I had given the amount from my ac- count, the same would have been adjusted in my account. My wife also never raised any objection regarding the same."
" it is correct that I have not given any letter in the society office with this fact that the amount transferred by me is not to be ad- justed in the account of my wife".
" it is correct that I have not made any payment to the society with respect to my loan account. It is correct that whatever the amount I had paid is being duly reflected in the loan account/ membership account of my wife bearing number 6658".
On the basis of above , it is quite clear that the payment which was made from the account of the wife has been put forward by the accused to have been made by him and the same to have been made with regard to the impugned loan transaction between him and the complainant society, while no documentary evidence or any agreement or any communication was conducted between the complaint society and the accused that the said amount which the accused is paying through the wife account is for the repay- ment of the loan borrowed by the accused. Accordingly, the amount which is paid from the account of the wife shall be deemed to have been paid for the loan borrowed by the wife and Ct. Case No 23959/2018 Page No. 12 of 15 M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma not for the repayment of the loan borrowed by the accused. It is only in the mind of the accused that the payment shall be ad- justed towards the loan borrowed by him. (Suresh Thomas V. MOD Enterprises 2017 DHC). While he never made any attempt to communicate in this regard with the complaint society. This fact is further added with the statements.
" it is correct that no payment has been made by me, even after filing of the present complaint. It is correct that apart from the aforesaid payments of Rs.13,000 each at point A and B for sum of Rs.2500 at point D of Ex. CW 1/11., I had not made any other payment in the society in my loan account and my wife's loan account/membership account".
Admittedly, no other payment has been made by the ac- cused apart from the payment of Rs.26,000, which he deemed to have been made on his account for the repayment of the loan bor- rowed by him. While as discussed above, no cogent evidence has been brought by the accused that the payment of Rs.26,000 made through the account of wife was towards the repayment for the loan borrowed by the accused. Corroborated by the fact that no other payment has been made by the accused. Accordingly, it can be made out that only payment of Rs.26,000 has been made in the present matter and no further payment has been done, and the accused has failed to prove that the said payment of Rs.26,000 was done for the repayment of the loan borrowed by him.
Ct. Case No 23959/2018 Page No. 13 of 15M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma To highlight further contradiction, accused stated at the time of notice framing that he has repaid Rs.50,000 for the loan of Rs.1,69,000 borrowed by him from the complainant. While in the later stages of trial, he came up with a defence of repayment only Rs.26,000, which also he has failed to prove. Hence, the defence of repayment by the accused appears to be concocted and after- thought.(Reliance placed on Angu Parmeshwari Textiles V. Sri Rajam & Company 2001 DCR 648; S.E. Investments Ltd V. Prem Singh 2019 (1) JCC 860 Delhi.).
19. On the basis of above reasoning, it can be observed that the accused has failed to prove that the loan of only Rs.1,69,000 was disbursed while he admitted the execution of the loan agreement and other related documents for the value of Rs.2,00,000. Further he failed to prove the defence of repayment of any amount to the complainant society. Hence, it can be observed that the accused has failed miserably to rebut the presumption arising in the favour of complainant under section 118/139 NIA even on pre- ponderance of probabilities. (Reliance placed on Arvind Kumar V. Neeraj Kumar 2018 DHC; Dr. Kailash V. Sayyad Khawaja 2018 DHC; Bhawish Chand Sharma V. Bawa Singh 2018 DHC; Shankaranarayana Shetty V. M Chandru 2018 (1) DCR 267; Di- pankar Majumder V. Sandipan Ghosh 2017 (2) DCR; Vijay Power Generators Ltd V. Annai Engineering Works & Ors 2014 (3) DCR 182 DHC; Anand V. M/s Step in Computer Shopee Ct. Case No 23959/2018 Page No. 14 of 15 M/s Madhav Co-operative Urban Thrift & Credit Society Ltd Vs. Mayank Sharma 2014 (3) DCR 228; Venkatesh Prasad V. Subray V Bhat 2014 (2) DCR 93; Janardan Singh V. State of Uttaranchal 2014 (1) DCR 151; Shailendra Alva V. Nagesh 2008 (1) DCR 206.).
20. Accordingly, Mayank Sharma is convicted for the offence under section 138 NIA.
21. Let the convict be heard on arguments on sentence.
22. Let the convict be provided with a copy of the judgement free of cost Note : This judgment contains 15 pages and each page is signed by the undersigned. Digitally signed by SHIVANGI Announced in the open SHIVANGI MANGLA MANGLA Date:
Court on 23.12.2024. 2024.12.23 16:30:01 +0530 (Shivangi Mangla) (JMFC-05 (NI ACT) South West, Dwarka New Delhi/23.12.2024 Ct. Case No 23959/2018 Page No. 15 of 15